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Holladay v. Royal Caribbean Cruises, Ltd.

United States District Court, S.D. Florida, Miami Division

October 7, 2019

Y HOLLADAY, Plaintiff,



         This Order addresses the discoverability of an engineering report ordered and received by a cruise ship operator's in-house counsel after a passenger injured himself on the ship's Sky Pad, an on-board jumping attraction. The cruise ship company has asserted work product protection over that report but dismantled the attraction before Plaintiff or his expert could inspect it. Plaintiff contends the report is not work product in the first place because the primary purpose for the report was not in anticipation of litigation. And he further urges entitlement to the report, even if it is work product, because he meets the “substantial need” or “inability to obtain equivalent evidence” exception. The cruise ship operator rejects those theories and objects to producing the engineering report.

         This discovery dispute arises from injuries Plaintiff Casey Holladay sustained while using the Sky Pad attraction aboard Defendant Royal Caribbean Cruises, Ltd.'s Mariner of the Seas ship. A participant using the Sky Pad is positioned on a trampoline and then fitted with a harness with bungee cords attached on either side, enabling the participant to bounce up and down. Plaintiff was bouncing on the Sky Pad when he became unattached from the harness system after the bungee equipment failed, causing him to fall on the hard deck surface next to the trampoline. The fall resulted in physical injury to the Plaintiff, including pelvic fractures.

         After filing this lawsuit against Royal Caribbean, Plaintiff propounded discovery and requested the production of documents relating to Plaintiff's fall from the Sky Pad. Royal Caribbean provided Plaintiff with a portion of the requested documents and a privilege log, asserting the work product exception to discovery over certain documents. It also asserted the attorney-client privilege to some emails.

         The Undersigned held a hearing on the parties' discovery dispute. [ECF Nos. 1');">18; 1');">19]. At the Discovery Hearing, Plaintiff sought the production of documents with a work product “privilege”[1');">1" name= "FN1');">1" id="FN1');">1">1');">1] designation on Royal Caribbean's Second Amended Privilege Log.

         The Undersigned ordered Royal Caribbean to submit a copy of the contested documents under seal for an in-camera inspection. [ECF No. 20]. Currently at issue is whether the SEA, Ltd. (“SEA”) Sky Pad Evaluation Report (the “SEA Report”) constitutes protected work product and should remain protected from production to Plaintiff. The SEA Report is the subject of Plaintiff's motion to compel. [ECF Nos. 32; 41');">1].

         The Undersigned analyzed the SEA Report to determine whether it was properly designated as a protected work product document. [ECF Nos. 21');">1; 22; 24; 25].

         Along with the Report, Royal Caribbean submitted the affidavit of Paul Hehir, a Royal Caribbean attorney who stated that Royal Caribbean “retained Bryan Emond from SEA, Ltd. . . . to inspect the Sky Pad and to provide Royal Caribbean with a report of his findings and opinions . . . as his findings and opinions would help defend the company from the litigation that Royal Caribbean anticipated would ensue after Plaintiff's incident.” Hehir Affidavit at ¶¶ 8, 1');">10-1');">11');">1.

         Plaintiff then submitted the Affidavit of Donald McPherson, Plaintiff's liability expert, who explained that it is impossible for him to adequately inspect the Sky Pad on the Mariner of the Seas because the attraction has been disassembled. [ECF No. 28-1');">1, p. 3');">p. 3]. He stated that while he has been able to “inspect certain parts and equipment of the Sky Pad that had been removed from the ship and was made available at the offices of Defense Counsel, ” some portions of the Sky Pad equipment “were not made available at the offices of the defense counsel when I conducted my inspection.” Id. at pp. 3');">p. 3, 5-6. McPherson attested that it is “not possible to obtain the same information” contained in the SEA Report because “Defendant had total access to all of the parts and equipment and information Defendant obtained promptly after the incident in question, whereas the Plaintiff did not have the benefit of the same information.” Id. at p. 6.

         In response, Royal Caribbean submitted the affidavit of its engineering expert, Brian Mills, who explained that the “[r]esponses to Plaintiff's Interrogatories, engineering schematics of the Sky Pad, Eurobungy manuals, Sky Pad maintenance documents, Sky Pad training documents, photos of the Sky Pad and its parts after the incident, and CCTV footage of the incident” are sufficient for Plaintiff to be able to replicate the same results from the SEA Report. [ECF No. 37-1');">1, p. 2]. Mills attested that “[t]he documents and materials made available to Plaintiff provide enough information to make an evaluation of the Sky Pad as it existed on the date of the incident and to determine how the incident occurred.” Id.

         The Undersigned ordered the parties to each submit a brief memorandum of law discussing whether Plaintiff has shown a substantial need for the SEA Report under Federal Rule of Civil Procedure 26(b)(3)(A)(ii). [ECF No. 38]. The parties filed their respective memoranda. [ECF Nos. 42; 44');">44].

         After careful consideration of the parties' submissions, the relevant authority, and the SEA Report, and for the reasons discussed in greater detail below, the Undersigned grants Plaintiff's request and directs Royal Caribbean to produce a copy of the SEA Report to Plaintiff's counsel within five (5) business days.

         I. Applicable Legal Principles

         “The attorney work-product privilege traces its roots to the recognition by the Supreme Court, in Hickman v. Taylor,329 U.S. 495, 51');">10-1');">11');">1, 67 S.Ct. 385, 393, 91');">1 L.Ed. 451');">1 (1');">1947), that ‘it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.'” Cox v. Admn'r U.S. Steel &Carnegie,1');">17 F.3d 1');">1386');">1');">17 F.3d 1');">1386, 1');">1421');">1 (1');">11');">1th Cir. 1');">1994), opinion modified on reh'g on other grounds, 30 F.3d 1');">1347 (1');">11');">1th Cir. 1');">1994); see also United Kingdom v. United States,1');">131');">12');">238 F.3d 1');">131');">12, 1');">1321');">1 (1');">11');">1th Cir. 2001');">1) (“The work-product doctrine reflects the strong ‘public policy underlying the orderly ...

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